Madras High Court

Merlin Mary … vs The Officer-In-Charge on 23 March, 2022

W.P. No. 10073 of 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 23.03.2022

CORAM

THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU

W.P. No. 10073 of 2018

Merlin Mary … Petitioner
-vs-
The Officer-In-Charge,
Records Punjab Regiment,
The Punjab Regiment,
Pin code – 908 761,
C.o, 56, APO. ... Respondent

Prayer:- Writ Petitions filed under Article 226 of the Constitution of India,
1950, praying to issue a Writ of Certiorarified Mandamus to call for records
relating to the order passed by the Respondent in Ref.No.2480198/LC/ pension
/24.07.2017 and 04.09.2017 and quash the same consequently direct the
Respondent to pay interest on the belated payment of arrears of pension from
01.01.2006 to 01.04.2017 to the Petitioner.
For Petitioner : Mr. A.R.Nixon

For Respondents : Mr. M.Arvind Kumar

ORDER

Heard Mr. A.R.Nixon, Learned Counsel for the Petitioner and

Mr. M.Arvind Kumar, Learned Counsel for the Respondent and perused the

materials placed on record, apart from the pleadings of the parties.

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W.P. No. 10073 of 2018

2. The husband of the Petitioner, viz., M.Alexander, committed suicide on

09.07.1998 while in the service of the Respondent and ordinary family pension

with effect from 01.01.2006 was granted to the Petitioner along with arrears

only in the year 2017. The Petitioner had made a representation dated

11.07.2017 for grant of interest for the belated payment of arrears of pension,

which was rejected by Order No. 2480198/LC/Pen dated 24.07.2017 passed by

the Record Officer, OIC Records, Punjab Regiment. Thereafter, the Petitioner

had made another representation dated 16.08.2017 for grant of interest for the

belated payment of arrears of pension for the period from 01.01.2006 to

01.04.2017, which was rejected by Order 2480198/LC/Pen dated 04.09.2017

passed by the Senior Record Officer, OIC Records, Punjab Regiment.

Aggrieved thereby, the Petitioner has filed this Writ Petition challenging the

said orders and for a consequential direction to the Respondent to pay interest

on the belated payment of arrears of pension from 01.01.2006 to 01.04.2017.

3. When the matter is taken up for hearing today, Learned Counsel for the

Petitioner was required to substantiate as to how the Writ Petition can be

entertained by this Court as neither the Respondent has its seat of authority nor

any part of the cause of action has arisen, within its territorial limits of its https://www.mhc.tn.gov.in/judis

W.P. No. 10073 of 2018

jurisdiction, in terms of clauses (1) and (2) of Article 226 of the Constitution of

India, 1950. In response to such query, Learned Counsel for the Petitioner

states that the impugned orders have been served on the Petitioner at her

residence at No. 7/165, Middles Street, Melakovilpatty, Batlagundu Post,

Nilakottai, Dindigul District which falls within the territorial limits of

jurisdiction of the Madras High Court.

4. The question whether the mere service of an order to the Petitioner at her

residence would entitle her to seek legal remedy under Article 226 of the

Constitution of India before the High Court when her residence is situated

within the territorial limits of jurisdiction of the High Court arose for

examination before the Hon'ble Supreme Court in State of Rajasthan -vs-

M/s.Swaika Properties [(1985) 3 SCC 217], where it has been held as follows:-

“8. The expression 'cause of action' is tersely defined in

Mulla's Code of Civil Procedure:

"The 'cause of action' means every fact which, if

traversed, it would be necessary for the plaintiff to

prove in order to support his right to a judgment of

the Court."

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W.P. No. 10073 of 2018

In other words, it is a bundle of facts which taken with the law

applicable to them gives the plaintiff a right to relief against the

defendant. The mere service of notice under S.52(2) of the Act on

the respondents at their registered office at 18-B, Brabourne

Road, Calcutta i.e. within the territorial limits of the State of West

Bengal, could not give rise to a cause of action within that

territory unless the service of such notice was an integral part of

the cause of action. The entire cause of action culminating in the

acquisition of the land under S. 52(1) of the Act arose within the

State of Rajasthan i.e. within the territorial jurisdiction of the

Rajasthan High Court at the Jaipur Bench. The answer to the

question whether service of notice is an integral part of the cause

of action within the meaning of Art. 226(2) of the Constitution

must depend upon the nature of the impugned order giving rise to

a cause of action. The notification dated February 8, 1984 issued

by the State Government under S. 52(1) of the Act became

effective the moment it was published in the official Gazette as

thereupon the notified land became vested in the State

Government free from all encumbrances. It was not necessary for https://www.mhc.tn.gov.in/judis

W.P. No. 10073 of 2018

the respondents to plead the service of notice on them by the

Special Officer, Town Planning Department, Jaipur under S.

52(2) for the grant of an appropriate writ, direction or order

under Art. 226 of the Constitution for quashing the notification

issued by the State Government under S. 52(1) of the Act. If the

respondents felt aggrieved by the acquisition of their lands situate

at Jaipur and wanted to challenge the validity of the notification

issued by the State Government of Rajasthan under S. 52(1) of the

Act by a petition under Art. 226 of the Constitution, the remedy of

the respondents of the grant of such relief had to be sought by

filing such a petition before the Rajasthan High Court, Jaipur

Bench, where the cause of action wholly or in part arose.”

This leads to the next issue as to whether the impugned orders sent by the

Respondent to the Petitioner at her residence at Dindigul forms part of the

cause of action to file this Writ Petition. In this context, reference could be

made to the decision of the Hon'ble Supreme Court in State of Punjab -vs-

Khemi Ram [(1969) 3 SCC 28]], in which it has been held as follows:-

“17. ....It will be seen that in all the decisions cited before us it

was the communication of the impugned order which was held to

be essential and not its actual receipt by the officer concerned https://www.mhc.tn.gov.in/judis

W.P. No. 10073 of 2018

and such communication was held to be necessary because till the

order is issued and actually sent out to the person concerned the

authority making such order would be in a position to change its

mind and modify it if it thought fit. But once such an order is sent

out, it goes out of the control of such an authority, and therefore,

there would be no chance whatsoever of its changing its mind or

modifying it. In our view, once an order is issued and it is sent out

to the concerned Government servant, it must be held to have

been communicated to him, no matter when lie actually received

it. We find it difficult to persuade ourselves to accept the view that

it is only from the date of the actual receipt by him that the order

becomes effective. If that be the true meaning of communication,

it would be possible for a Government servant to effectively

thwart an order by avoiding receipt of it by one method or the

other till after the date of his retirement even though such an

order is passed and despatched to him before such date. An

officer against whom action is sought to be taken, thus may go

away from the address given by him for service of such orders, or

may deliberately give a wrong address and thus prevent or delay

its receipt and be able to defeat its service on him. Such a https://www.mhc.tn.gov.in/judis

W.P. No. 10073 of 2018

meaning of the word 'communication' ought not to be given unless

the provision in question expressly so provides....”

This would mean that the despatch of the order by the authority passing the

order would suffice for the purpose of communicating the order and its actual

delivery to the addressee is immaterial and hence, that cannot form any part of

the cause of action.

5. Even if it is assumed that this Court would have territorial jurisdiction in

addition to the other Courts, the principle of forum convenience would clearly

operate to the effect that the Writ Petition ought not to be entertained in this

Court when the part of the cause of action is trivial or negligible as in this case

as fortified by the decision of the Division Bench of this Court in C.Ramesh

-vs- Director General of Police (Order dated 06.06.2013 in W.P.

(MD) No. 8790 of 2013), where it has been held as follows:-

"7. Exercise of jurisdiction is based on arising of the cause of

action, either in whole or in part in any one of the said Revenue

Districts. [See RAJASTHAN HIGH COURT ADVOCATES'

ASSOCIATION Vs. UNION OF INDIA AND OTEHRS (2001 (2)

SCC 294) and B.STALIN Vs. THE REGISTRAR, SUPREME

COURT OF INDIA AND OTHERS (2012 (3) LW 489 (FB))].

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W.P. No. 10073 of 2018

8. It should be remembered that the part of cause of action

must be substantial in nature. The territorial jurisdiction of the

Court is linked with the place of accrual of cause of action. [See

U.P. RASHTRIYA CHINI MILL ADHIKARI PARISHAD,

LUCKNOW Vs. STATE OF U.P. AND OTHERS (1995 (4) SCC

738)].

9. Referring to KUSUM INGOTS & ALLOYS LTD. Vs. UNION

OF INDIA (2004 (3) CTC 365), a Full Bench of this Court in

SANJOS JEWELLERS Vs. SYNDICATE BANK, BANGALORE

AND OTHERS (2007 (5) CTC 305), held as under:- "30. We must,

however, remind ourselves that even if a small part of cause of

action arises within the territorial jurisdiction of the High Court,

the same by itself may not be considered to be a determinative

factor compelling the High Court to decide the matter on merit. In

appropriate cases, the Court may refuse to exercise its

discretionary jurisdiction by invoking the Doctrine of forum

conveniens. [See BHAGAT SINGH BUGGA Vs. DEWAN JAGBIR

SAWHNEY, AIR 1941 CAL 670 : ILR (1941) 1 CAL 490; https://www.mhc.tn.gov.in/judis

W.P. No. 10073 of 2018

MADANLAL JALAN Vs. MADANLAL, 1945 (49) CWN 357: AIR

1949 CAL 495; BHARAT COKING COAL LTD. Vs. JHARIA

TALKIES & COLD STORAGE (P) LTD., 1997 CWN 122;

S.S.JAIN & CO. Vs. UNION OF INDIA, 1994 (1) CHN 445, and

NEW HORIZONS LTD. Vs. UNION OF INDIA, AIR 1994 DEL

126].

10. Question of entertaining a lis disclosing a cause of action

or part of cause of action is based on the averments contained in

the affidavit etc. At that stage, the truth or otherwise of the

averments need not be gone into. But, there must be necessary

averments disclosing a cause of action, so that the Court can take

cognizance of/entertaining the lis exposed in the petition for

taking further action. [See OIL AND NATURAL GAS

COMMISSION Vs. UTPAL KUMAR BASU AND OTHERS (1994

(4) SCC 711)]

11. A Court cannot arrogate/assume/confer upon itself a

jurisdiction- territorial jurisdiction, when it has no such

jurisdiction. Lack of jurisdiction to entertain a matter goes to the https://www.mhc.tn.gov.in/judis

W.P. No. 10073 of 2018

root of the matter, otherwise whatever action taken or orders

passed by the Court becomes a nullity, it is non est and of no

consequence at all resulting in wasting of precious public time.

Courts are barred from indulging in hypothetic and academic

exercises."

6. When it is pointed out that the Writ Petition cannot be entertained in this

Court in view of the aforesaid legal position, Learned Counsel for the Petitioner

seeks permission of the Court to withdraw this Writ Petition with liberty to file

fresh Writ Petition for the same relief before the jurisdictional High Court and

he has made an endorsement to that effect in the court record.

In fine, the Writ Petition is dismissed as withdrawn granting such liberty.

No costs.

23.03.2022 Maya/skr Index: Yes/No Note: (i) Issue order copy by 09.05.2022.

(ii) Registry is directed to return the original copy of the impugned order to the Petitioner under written acknowledgment after retaining a copy of the same for record.

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W.P. No. 10073 of 2018

The Officer-In-Charge, Records Punjab Regiment, The Punjab Regiment, Pin code – 908 761, C.o, 56, APO.

https://www.mhc.tn.gov.in/judis

W.P. No. 10073 of 2018

P.D. AUDIKESAVALU, J.

Maya/skr

W.P. No. 10073 of 2018

23.03.2022

https://www.mhc.tn.gov.in/judis